IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS UNITED STATES OF AMERICA, ) ) Plaintiff, ) CRIMINAL ACTION ) No. 11-20051-01-KHV v. ) ) CIVIL ACTION RIGOBERTO SOTO-ARREOLA, ) No. 12-2738-KHV ) Defendant. ) ____________________________________________) MEMORANDUM AND ORDER On August 23, 2011, defendant pled guilty to one count of aggravated reentry by a deported alien in violation of 8 U.S.C. § 1326(a), (b). On November 15, 2011, the Court sentenced defendant to 120 months in prison. This matter is before the Court on defendant’s Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Pursuant To 28 U.S.C. § 2255 (Doc. #30) filed November 19, 2012. For reasons stated below, the Court overrules defendant’s motion and denies a certificate of appealability. Factual Background On direct appeal, the Tenth Circuit summarized defendant’s criminal history as follows: Although Mr. Soto-Arreola is now in his mid-twenties, his brushes with the law began much earlier. According to his PSR, he was the subject of eight separate juvenile adjudications in Kansas state and municipal courts. At age fourteen, he was charged with interference with city officers and driving without a license and was assessed monetary fines. At fifteen, he was found guilty of criminal damage to property and theft and was placed on twelve months’ probation for each offense. He was also fined for several traffic violations. At sixteen, he was charged with criminal damage to property and placed on Juvenile Intensive Supervised Probation for twenty-four months. At seventeen, he was fined for numerous traffic violations and also received an unknown sentence for a charge of disorderly conduct. When Mr. Soto-Arreola turned eighteen, his criminal behavior continued and intensified. According to the PSR, he was twice cited for transporting an open container of alcohol, once while a passenger in a stolen vehicle. He was also convicted of possession of methamphetamine and obstructing the legal process. For the former offense, he was sentenced to fifteen months’ imprisonment; for the latter, eight months’ imprisonment followed by twelve months of supervised release. The two sentences were set to run concurrently, though Mr. Soto-Arreola was granted eighteen months’ probation for each offense. He failed to report for bond supervision, however. Consequently, his probation was revoked, and he was ordered to serve his original sentences. At age twenty, Mr. Soto-Arreola was convicted of aggravated battery for shooting an individual in the arm. Although sentenced to twelve months’ imprisonment, he was paroled to a detainer in August 2010, charged by United States Immigration and Customs Enforcement with entry without inspection, and deported to Mexico in September 2010. He returned to the United States without authorization sometime thereafter. In March 2011, at age twenty-three, he pleaded no contest in state court to a charge of obstructing the legal process and received a deferred sentence. Order And Judgment (Doc. #29) at 2-3. On July 1, 2011, a grand jury returned an indictment which charged defendant with reentry by a deported alien after an aggravated felony conviction in violation of 8 U.S.C. § 1326. On August 23, 2011, defendant pled guilty. Defendant’s total offense level was 21, with a criminal history category V, resulting in a guideline range of 70 to 87 months in prison. Defendant proposed a sentence at the low end of the guideline range while the government recommended a sentence in the guideline range. On November 15, 2011, the Court sentenced defendant to 120 months in prison. In varying upward from the guideline range, the Court found as follows: Just so you know, this defendant has a very lengthy criminal history. He has a drug felony. He’s got another violent felony. He apparently is a gang member. He’s got past revocations of supervision. He has a history of substance abuse. It looks to me like he’s at a high risk to recidivate and probably a sentence of higher than the guideline range is appropriate. So in addressing what you think the sentence should be, please address those concerns. * * * When I look at the presentence report here, it looks like you have total contempt for American law. You have been in trouble since you were 14. So it’s been nonstop for the last nine years with no evidence of any willingness or ability to lawfully support yourself or your family. You committed this crime while you -2- were on parole. As I said before, it looks to me that you’re a great danger to society because of your lengthy criminal history, your violent background, your drug-related felony, your gang affiliations; and so even though the custody range is 70 to 87 months, the sentence I’m proposing is 120 months. The custody sentence under the statute is up to 20 years, and this is right in the middle of that. That would be followed by three years of supervised release with all of the conditions there as outlined in Part D of the presentence report. * * * I believe that a longer sentence is appropriate, and when I look at all the factors under Section 3553(a), I am underscoring the seriousness of his criminal history, the need to provide protection to the public from further crimes by this defendant, and the fact that I believe he’s at an extremely high risk to recidivate because of his gang membership and the history of pretty much unrelenting criminal activity since a very young age, at 14. Transcript Of Sentencing Proceedings (Doc. #25) at 3, 12-15. In commenting on the proposed sentence, government counsel stated as follows: Your Honor, not to put words in the court’s mouth, but from what I have heard, it sounds like the nature and circumstances of the offense as well as the history and characteristics of the defendant, particularly the lack of employment, the gang membership, the long-time criminal history – the presentence report, beginning at Paragraph 24 details all of his criminal history, and that continues until Paragraph 37, with each of those being separate convictions. Then Paragraphs 41 through 47 are additional incidents of contact that the defendant had with law enforcement where either charges were not pursued or charges were dismissed, with one of those being an entry without inspection in August of 2010, and he was then deported in September of 2010, which would have been an offense similar to this offense, and then based upon the type of criminal history and the crimes of which he’s been convicted, as well as the various revocations and committing this offense while on supervision, it appears as though there needs to be extra attention paid to afford adequate deterrence to criminal conduct and to protect the public from further crimes of this defendant based upon the types of convictions that he’s had. Id. at 15-16. Shortly before pronouncing sentence, the Court stated as follows: Also his drug use, I think, makes him at a higher risk of recidivism, but yes, I agree with what you just said; and, I mean, it’s obvious to me that much of this defendant’s prior criminal history and his contacts with law enforcement are not scored in any way in the guideline calculations. * * * -3- So the court finds that the presentence report is accurate and orders that those findings be incorporated in this sentence for the record. I do agree with Mr. Rask’s summary of the factors which the court has considered with regard to the defendant’s personal history and characteristics. Id. at 16-17. Defendant appealed. On July 12, 2012, the Tenth Circuit affirmed. See Order And Judgment (Doc. #29). Michael Harris, a former Assistant Federal Public Defender, represented defendant throughout the plea proceeding and trial. Kirk Redmond, an Assistant Federal Public Defender represented defendant on appeal. On November 19, 2012, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant’s Section 2255 motion asserts a claim that Harris provided ineffective assistance because he induced defendant to enter a plea which was involuntary and unknowing. In particular, defendant alleges that during plea negotiations, Harris provided ineffective assistance because (1) he promised defendant that the Court would follow the government recommendation and not impose a sentence greater than the high end of the guideline range of 70 to 87 months and (2) he threatened to withdraw from the case if defendant did not plead guilty. Motion Under 28 U.S.C. § 2255 (Doc. #30) at 8.1 Analysis The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant’s conviction were correct. See Klein v. United States, 880 1 Defendant’s original motion asserts that counsel promised him a “capped sentence” of two years. See Motion Under 28 U.S.C. § 2255 (Doc. #30) at 8-9. In defendant’s subsequent memoranda in support of his motion, defendant asserts that the cap was 87 months, the high end of the guideline range. See Memorandum Of Law (Doc. #40) at 3. -4- F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974). To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v.